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Abstract

This article introduces the concept of de facto amnesty as a distinct category within transitional justice. While international law has increasingly restricted de jure amnesties, it has paid less attention to informal or structural practices that foreclose accountability in fact. Such practices, whether extensions of statutory amnesties, tacit political bargains, or systemic enforcement failures, have often been tolerated, and at times legitimized, by international actors. Without a clear framework, they risk being conflated either with impunity or with legitimate reconciliatory measures. The paper proposes a working definition of de facto amnesty and a five-step diagnostic method for its identification. It then develops a typology through comparative case studies of Lebanon, Cambodia, and Indonesia, each illustrating a distinct modality of non-prosecution. Finally, it advances an “interests of justice” test as a means of distinguishing when de facto amnesties may serve reconciliation and when they merely entrench impunity. By mapping this overlooked phenomenon, the article expands the transitional justice toolbox and sharpens the normative debate over peace, accountability, and reconciliation. (from author)

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